01992332
05-26-2000
Mona L. Dogans, Complainant, v. Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.
Mona L. Dogans, )
Complainant, )
)
v. ) Appeal No. 01992332
) Agency No. FW-98-22
Andrew M. Cuomo, )
Secretary, )
Department of Housing and Urban )
Development, )
Agency. )
____________________________________)
DECISION
INTRODUCTION
Mona L. Dogans (complainant) timely<1> filed an appeal on March 12, 1999,
with the Equal Employment Opportunity Commission (the Commission) from
a final agency decision (FAD), received by complainant January 9, 1999,
concerning a complaint of unlawful employment discrimination in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq.<2> The Commission hereby accepts the appeal in accordance
with 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R.
� 1614.405).
ISSUE PRESENTED
Whether the agency correctly determined that one of complainant's claims
failed to state a claim and the other stated the same claim as a complaint
previously filed with the agency.
BACKGROUND
Complainant filed a formal complaint on July 9, 1998, alleging
discrimination on the bases of race (Black), sex (female), physical
disabilities (severe allergies and sinus) and reprisal (prior EEO
complaints) when: 1) when unlike three other �unplaced� employees in her
office, she was not returned to her position without having to compete;
and 2) when she was not selected for any of the positions for which she
applied. The agency's FAD, dated December 21, 1998, dismissed claim (1)
for failure to state a claim, and claim (2) for stating the same claim
as was contained in Agency Complaint No. FW-98-21. This appeal followed.
ANALYSIS AND FINDINGS
Claim 1
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R.
� 1614.107(a)(1)) provides, in relevant part, that an agency shall
dismiss a complaint that fails to state a claim. An agency shall accept
a complaint from any aggrieved employee or applicant for employment who
believes that he or she has been discriminated against by that agency
because of race, color, religion, sex, national origin, age or disabling
condition. 29 C.F.R. �� 1614.103, 106(a). The Commission's federal
sector case precedent has long defined an "aggrieved employee" as one
who suffers a present harm or loss with respect to a term, condition, or
privilege of employment for which there is a remedy. Diaz v. Department
of the Air Force, EEOC Request No. 05931049 (April 22, 1994).
With respect to claim (1), we agree with the agency that complainant's
status as an �unplaced� employee did not change the terms, conditions,
or privileges of her employment. Complainant remained in the position of
record, with the same duties and responsibilities. She was considered
�unplaced� because based on projections at the time, her position would
not exist in the reorganized agency. The agency then decided that there
would be no more �unplaced� employees at the agency, and that every
employee would receive a permanent position under the reorganization, so
complainant did not suffer a harm as the result of being characterized as
an �unplaced� employee. At best, complainant's status as an �unplaced�
employee was a notice of a proposed action. We find, therefore, that
claim (1) fails to state a claim.
Claim 2
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R.
� 1614.107(a)(1)) provides that the agency shall dismiss a complaint
that states the same claim that is pending before or has been decided
by the agency or Commission. We agree with the agency that claim (2)
should be dismissed because the record shows that her claim regarding her
non-selections is the subject of an earlier EEO complaint (Agency Case
No. FW-98-21). We find, therefore, that claim (2) states the same claim
as one of complainant's earlier complaints, and should be dismissed.
CONCLUSION
The decision of the agency is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF
RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.604). The request or opposition must
also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
You have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. If you file a civil action, YOU MUST NAME AS
THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD
OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND
OFFICIAL TITLE. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
05-26-00 ____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
1 Complainant filed a request for an extension to file her appeal on
January 28, 1999. Complainant filed her appeal with the Commission on
March 12, 1999. Her appeal was docketed as appeal number 01993591.
Due to confusion surrounding her request for an extension, we will
consider her appeal to be timely filed.
2 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.